Is Ability to Work Overtime an Essential Function?

tashaismydog

Employee has caused supervisor a lot of problems recently after being asked to temporarily work 10-hour days (normal workday is 8). The employee went so far as to claim a recurrent problem with a 4 year old W/C injury, which we responded to immediately. After three more "re-checks" including two visits to a neurosurgeon, he has been released to return to work with the SAME RESTRICTIONS that he had four years ago. These are well within the requirements of his job, so there is no real problem there. The only stipulation NOW is that he cannot work more than 8 hours per day. We're really getting tired of going "round and round" with this employee. The supervisor feels like the employee has complicated things so much, cost us so much money, just to come back to the thing about working more than 8 hours when needed. I tend to agree.

What do you think? Is the ability to work OT an essential function? Attendance generally is, so wouldn't this be, as well? Your comments are very much appreciated.

sonny

Is it listed in the job description?

tashaismydog

No. Hours of work are not specifically mentioned in the job description, for any position.

Don D

[font size="1" color="#FF0000"]LAST EDITED ON 10-08-03 AT 08:12PM (CST)[/font][p][font size="1" color="#FF0000"]LAST EDITED ON 10-08-03 AT 08:09 PM (CST)[/font]


Sorry for the multiple edit; I have pizza on my finger:

Tasha's Mom: I think you can hang your hat on the fact that it is standard practice at your company to require that people be available for overtime hours. Not that you could set that up as a requirement for only this particular person, mind you.

If your business has a practice of having that as a requirement for all or for others similarly situated, and this person cannot (or more likely, WILL not) make himself available for those hours, terminate him based on his non-availability for the expectations of the work week. But, wait until he is a no-show for the assigned extra hours. There is no requirement that this be listed in a job description. In fact, there is no requirement that you even have a published job description.

An employee cannot self-certify his medically-related job restrictions. If his doctor says he must restrict to an 8-hour day, that may be another matter, which you are at liberty to explore and challenge.

Hatchetman

I agree that working overtime isn't categorically an essential function or an essential demand of the job.

There are many factors that determine whether a function or demand is really essential or not. The company's practice is one factor. Others include the frequency of the overtime being required and the impact if the function isn't worked. I wouldn't go down that road for the issue of "overtime."

You should have a policy that requires that overtime be worked when instructed or demanded by management; thus if the emplyee is instructed to work overtime but refuses, insbordination charges could be brought. But if overtime is part of a policy requirement, if the employee is disabled under ADA, resuting in an inability to work overtime, then a reasonable accommodaiton could be modification or exemption from your policy.

However, at this point, have you determined that the employee is disabled under ADA. You may need to evaluate that before you do anything else.

tashaismydog

Thanks for the comments. The employee is NOT disabled. We do require all other employees to work overtime as needed. I guess the most sound way to handle this would be to return him to work, and then the next time he refuses overtime (he has been disciplined recently for failing to report for it) we release him based on his refusal or being unavailable for work. Trouble is, in TN, even if this is the way it goes, his return to work isn't "meaningful" and then we could be on the hook for the other 4X his disability rating.

Hey, wait a minute, we're fully insured, and the injury is 4 years old and therefore won't count on our most recent experience mods. Hmmm.

Gotta go, I have to bring an employee back to work.

Thanks!

SDDCHR

OT is considered an essential function of the job. But as Hatchetman stated, you should have a policy or scheduling guidelines that direct your overtime requirements.